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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • C.S.Dhanasekaran
Judges
  • Mr. Justice K. Mohan Ram
Acts
  • provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1)
  • Domestic Violence Act, 2005 (hereinafter referred
  • section 498-A of the Indian Penal Code.
  • Sections 12, 18, 19, 20, 21, 22 and 23
  • Section 482 of Cr.P.C.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • C.S.Dhanasekaran
Judges
  • Mr. Justice K. Mohan Ram
Acts
  • provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1)
  • Domestic Violence Act, 2005 (hereinafter referred
  • section 498-A of the Indian Penal Code.
  • Sections 12, 18, 19, 20, 21, 22 and 23
  • Section 482 of Cr.P.C.
See more information ...
Smart Summary

Structured Summary of the Opinion — STC.No.1607 of 2007

Factual and Procedural Background

The respondent (the wife of the petitioner) filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 ("the Act"), making allegations against the petitioner. The application and a sworn statement were recorded on 25.7.2007. The learned Judicial Magistrate No. VI, Coimbatore, being satisfied that a prima facie case was made out, took the application on file under Section 12 of the Act, posted the matter to 30.7.2007, and directed issuance of summons and private notice to the petitioner. The petitioner filed a criminal original petition under Section 482 of the Cr.P.C. seeking to quash the proceedings in STC.No.1607 of 2007.

The court diary indicates subsequent procedural steps: multiple listings where the petitioner was absent; directions for service (including to the Protection Officer and private notice); return of postal cover as "unclaimed"; issuance of a non-bailable warrant which was later cancelled when the petitioner surrendered on 18.8.2007. Copies were given and the petitioner was questioned.

Legal Issues Presented

  1. Whether the learned Magistrate violated the mandatory requirement of Section 12(4) of the Act by recording the sworn statement on 25.7.2007 and adjourning the first hearing to 30.7.2007.
  2. Whether service of notice of the date of hearing complied with Section 13(1) of the Act, specifically whether notice was required to be served by the Protection Officer and whether permitting private notice was contrary to the statutory procedure.
  3. Whether the absence of a declaration of service by the Protection Officer (as per Section 13(2)) vitiates the proceedings.
  4. Whether the Magistrate erred in taking cognizance of the application under Section 12 of the Act without first calling for or receiving the domestic incident report from the Protection Officer (the proviso to Section 12).

Arguments of the Parties

Petitioner's Arguments

  • The sworn statement of the respondent was recorded on 25.7.2007 but the first hearing was adjourned to 30.7.2007, allegedly violating the mandatory timeline in Section 12(4) which requires the first hearing "not ordinarily" beyond three days from receipt of the application.
  • The notice of the date of hearing was not served in accordance with Section 13(1) because it was not served by the Protection Officer and private notice was permitted instead of the prescribed procedure.
  • No declaration of service of notice by the Protection Officer was filed as required by Section 13(2), and that absence undermines the validity of service.
  • The learned Magistrate took cognizance of the application without obtaining the domestic incident report from the Protection Officer, contrary to the proviso to Section 12 which requires consideration of any domestic incident report before passing any order.
  • On the basis of the above alleged procedural breaches, the petitioner sought quashing of the proceedings under Section 482 Cr.P.C.

The opinion does not contain a detailed account of any specific arguments advanced by the respondent in response; the factual record notes the respondent's presence on several dates and the sworn statement filed on 25.7.2007.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeds from statutory construction and the legislative purpose. It emphasizes that the Act is beneficent social welfare legislation intended to protect aggrieved persons and that a purposive, non-narrow interpretation is required so as not to defeat the Act's objectives.

The court examined the relevant statutory provisions: Section 12 (including subsections (4) and (5) and the proviso), Section 13 (subsections (1) and (2)), and Section 28 (both subsections). Key points of the court's step‑by‑step reasoning are summarized below.

  1. Interpretation of timing provisions (Section 12(4) and 12(5)):
    • The court noted Section 12(4) requires the Magistrate to fix the first date of hearing "not ordinarily" beyond three days from receipt of the application, and Section 12(5) requires endeavouring to dispose of the application within sixty days from the first hearing.
    • The court observed these time limits are designed to secure time‑bound disposal and to that end Section 13 provides enabling procedural mechanisms for prompt service.
  2. Purpose and operation of Section 13:
    • Section 13(1) provides that the Magistrate shall give notice of the hearing to the Protection Officer who shall get it served within a maximum period of two days (or further reasonable time allowed by the Magistrate).
    • Section 13(2) provides that a declaration of service by the Protection Officer is proof of service unless the contrary is proved.
    • The court reasoned that Section 13 aims to facilitate speedy service so the sixty‑day disposal objective in Section 12(5) can be met.
  3. Role of Section 28 and the Magistrate's procedural discretion:
    • Section 28(1) provides that proceedings under specified sections are governed by the Cr.P.C. but Section 28(2) expressly permits the Court to lay down its own procedure for disposal of an application under Section 12.
    • The court relied on Section 28(2) to conclude the Magistrate may adopt procedural variations to achieve the Act's objectives consistent with the Act's spirit.
  4. Application of the statutory scheme to the case facts:
    • The diary extract shows the respondent's sworn statement was recorded on 25.7.2007; the Magistrate took the application on file and posted it to 30.7.2007, noting 28th and 29th July were holidays and directing summons and private notice to the petitioner.
    • The Magistrate subsequently took steps to obtain service (issue summons, direct service by Protection Officer, issue private notice, and, after unsuccessful postal service, issue a non‑bailable warrant which was later cancelled when the petitioner surrendered and received copies).
    • The court found the Magistrate was conscious of the timelines in Section 12(4) and had actively endeavoured to secure service in the days that followed.
  5. On the contention regarding private notice and service by the Protection Officer:
    • The court held that the Magistrate's direction to issue private notice cannot be said to contravene the Act because Section 28 permits the Court to lay down its own procedure. Issuance of private notice was therefore consonant with Section 28 and not prejudicial to the petitioner.
  6. On the absence of a declaration of service by the Protection Officer:
    • The court observed that Section 13(2) makes such a declaration proof of service, but the absence of the declaration did not affect the proceedings or prejudice the petitioner's interest because the petitioner had in fact appeared before the Magistrate (including by surrendering on 18.8.2007) and received copies.
    • Therefore, the court concluded that the requirement to file a declaration of service had not become necessary in the factual matrix of the case.
  7. On the requirement to consider a domestic incident report from the Protection Officer:
    • The court interpreted the proviso to Section 12 as requiring the Magistrate, before passing any order, to take into consideration any domestic incident report received from the Protection Officer.
    • However, the court held this proviso does not make receipt of such a report a condition precedent to taking cognizance of the application. The statute does not require that the magistrate must wait for the domestic incident report before taking the application on file.
  8. On procedural deviations and the remedy of quashing:
    • The court emphasized the beneficent and remedial character of the Act and stated that minor procedural deviations that are technical in nature should not be allowed to frustrate the legislative purpose.
    • Accordingly, minor procedural lapses in the instant case do not warrant quashing of the proceedings under Section 482 of the Cr.P.C.

Holding and Implications

HOLDING: The petition under Section 482 Cr.P.C. is dismissed as vexatious and an abuse of process of the Court; the petition is accordingly dismissed and connected miscellaneous petitions are also dismissed.

Implications:

  • Direct effect on the parties: The petition seeking to quash the proceedings in STC.No.1607 of 2007 is dismissed; connected miscellaneous petitions are likewise dismissed.
  • Broader implications: The opinion treats procedural deviations that are minor and technical as insufficient to defeat the remedial object of the Act. The court emphasized purposive construction of the Act and recognized the Magistrate's procedural flexibility under Section 28(2). The opinion itself does not state that it sets a novel legal precedent; no wider declaratory relief or rule beyond the decision in this matter is articulated in the text.

Prepared strictly from the provided opinion. No information has been added beyond what appears in the source text.

Show full summary ...

    Amar Kumar Mahadevan v. Karthiyayini

    The petitioner herein is the respondent in STC.No.1607 of 2007 on the file of the learned Judicial Magistrate No.VI, Coimbatore. The respondent herein is the wife of the petitioner. The respondent filed an application under Section 12 of the The Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the "Act") making certain allegations against the petitioner herein. The said application seems to have been filed on 25.7.2007 and on the same date, the sworn statement has been recorded. The learned Magistrate being satisfied that a prima facie case has been made out, has taken the application on file under Section 12 of the Act and posted the application to 30.7.2007, directed the issue of summons to the accused/petitioner herein and also private notice to the petitioner herein. The petitioner has filed the above criminal original petition under Section 482 of Cr.P.C. seeking to quash the proceedings in STC.No.1607 of 2007.

    2. The contention of the petitioner is that the sworn statement of the respondent herein was recorded only on 25.7.2007 and the hearing was adjourned to 30.7.2007 in gross violation of the mandatory provisions of Section 12(4) of the Act. It is further contended that the service of notice of the date of hearing fixed under Section 12 of the Act is not in accordance with the procedure prescribed under Section 13(1) of the Act namely, the notice was not served by the Protection Officer and private notice has been permitted. Further, a declaration of service of notice made by the Protection Officer has not so far been filed as per the provisions contained under Section 13(2) of the Act.

    3. The learned counsel for the petitioner further contended that the learned Magistrate erred in taking cognizance of the application filed by the respondent herein without calling for the report from the Protection Officer.

    4. Heard Mr. C.S. Dhanasekaran, learned counsel for the petitioner.

    5. The learned counsel for the petitioner while reiterating the above said contentions put forth in the petition submitted that the proceedings pending on the file of the learned Magistrate are liable to be quashed for not following the mandatory provisions contained in the Act.

    6. Before considering the above said contentions put forth by the petitioner, it is necessary to refer the relevant provisions of the Act. Sections 12 and 13 of the Act read as follows:

    "12. Application to Magistrate- (1) An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under this Act:
    Provided that before passing any order on such application, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer or the service provider. (2) The relief sought for under sub-section (1) may include a relief for issuance of an order for payment of compensation or damages without prejudice to the right of such person to institute a suit for compensation or damages for the injuries caused by the acts of domestic violence committed by the respondent:
    Provided that where a decree for any amount as compensation or damages has been passed by any Court in favour of the aggrieved person, the amount, if any, paid or payable in pursuance of the order made by the Magistrate under this Act shall be set off against the amount payable under such decree and the decree shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, be executable for the balance amount if any, left after such set off.
    (3) Every application under sub-section (1) shall be in such form and contain such particulars as may be prescribed or as nearly as possible thereto.
    (4) The Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court.
    (5) The Magistrate shall endeavour to dispose of every application made under sub- section (1) within a period of sixty days from the date of its first hearing.
    13. Service of notice- (1) A notice of the date of hearing fixed under section 12 shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt. (2) A declaration of service of notice made by the Protection Officer in such form as may be prescribed shall be the proof that such notice was served upon the respondent and on any other person as directed by the Magistrate unless the contrary is proved."

    7. Before making an endeavour to ascertain the purport and scope of the provisions contained in Sections 12 and 13 of the Act, it will be useful to refer to the objects in enacting the above said Act. The statement of objects and reasons reads as follows:

    "Statement of Objects and Reasons.- Domestic violence is undoubtedly a human rights issue and serious deterrent to development. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged this. The United Nations Committee on Convention on Elimination of All forms of Discrimination Against Women (CEDAW) in its General Recommendation No.XII (1989) has recommended that State parties should act to protect women against violence of any kind especially that occurring within the family.
    2. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a women is subjected to cruelly by her husband or his relatives, it is an offence under section 498-A of the Indian Penal Code. The civil law does not however address this phenomenon in its entirety.
    3. It is, therefore, proposed to enact a law keeping in view the rights guaranteed under articles 14, 15 and 21 of the Constitution to provide for a remedy under the civil law which is intended to protect the woman from being victims of domestic violence and to prevent the occurrence of domestic violence in the society."

    8. In construing the provisions of the Act, the Court has to bear in mind that it is a beneficent piece of social welfare legislation aimed at promoting and securing the well-being of the aggrieved persons and the Court will not adopt a narrow interpretation which will have the effect of defeating the very object and purpose of the Act. It must be interpreted in the spirit in which the same have been enacted accompanied by an anxiety to ensure that the protection is not nullified by the backward looking interpretation which serves to defeat the provision rather than to fulfil its life-aim.

    9. Keeping the above said principles in mind, if the provisions contained in Sections 12 and 13 of the Act are considered with reference to the contentions put forth by the learned counsel for the petitioner, this Court without any hesitation comes to a conclusion that the said contentions put forth by the counsel for the petitioner have to be rejected at a threshold. A reading of Section 12(4) of the Act shows that the Magistrate shall fix the first date of hearing, which shall not ordinarily be beyond three days from the date of receipt of the application by the Court. Section 12(5) of the Act stipulates that the Magistrate shall endeavour to dispose of every application made under sub-section (1) within a period of sixty days from the date of its first hearing. Since the Act provides for the disposal of the application filed by the aggrieved person in a time bound manner, to achieve that object, certain enabling provisions have been incorporated under Section 13 of the Act. Section 13 of the Act provides that a notice of the date of hearing fixed under Section 12 of the Act shall be given by the Magistrate to the Protection Officer, who shall get it served by such means as may be prescribed on the respondent, and on any other person, as directed by the Magistrate within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate from the date of its receipt. A declaration of service of notice made by the Protection Officer in the form set out by the Central Government by rules shall be a proof of service of notice. Since as per Section 12(5) of the Act, it is the bounden duty of the Magistrate to make an endeavour to dispose of the application within a period of sixty days from the date of its first hearing, unless the service of notice is completed at the earliest, it may not be possible to dispose of the application within the above said stipulated time. Therefore, Section 13 of the Act provides for service of notice on the respondent through the Protection Officer and such notice shall be served within a maximum period of two days or such further reasonable time as may be allowed by the Magistrate. In this context, it will be useful to refer Section 28 of the Act, which reads as follows:

    " 28. Procedure- (1) Save as otherwise provided in this Act, all proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under Section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974).
    (2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under Section 12 or under subs-section (2) of Section 23.

    10. A reading of the above said provision shows that sub-section 2 envisages that the Court may lay down its own procedure for disposal of an application. Thus, it is clear that apart from following the procedure provided under Sections 12 and 13 of the Act, it is open to the Magistrate to follow its own procedure for disposal of applications filed under this Act.

    11. It is seen from the diary extract that the complainant was present on 25.7.2007 and the sworn statement of the respondent had been recorded on the same day and after perusing the records and on being satisfied that a prima facie case has been made, the learned Magistrate has taken the application on file under Section 12 of the Act and posted the application to 30.7.2007. The learned Magistrate has noted that 28th and 29th of July, 2007 happened to be holidays and therefore, has directed to issue summons to the accused (respondent) on payment of process fee and also private notice to the accused (respondent). Thus, it is clear that the learned Magistrate was conscious of the time limit prescribed under Section 12(4) of the Act. On 30.7.2007, the complainant/respondent herein was present but the accused/petitioner was not present and therefore, summons was ordered on 1.8.2007. On 1.8.2007, the complainant/respondent herein was present but the accused/petitioner herein was not present and it had been brought to the notice of the Court that the petitioner is working at Visakapattinam and at the request of the counsel for the respondent herein, notice has been ordered to be issued to the Protection Officer and on the next date of hearing was fixed for 10.8.2007. On 10.8.2007, as the accused/petitioner herein was not present, once again, summons have been directed to be issued to the petitioner and a private notice has also been ordered returnable by 17.8.2007. On 17.8.2007, the respondent herein was present but the petitioner herein was absent. The postal cover had been returned as "unclaimed". Hence, the non bailable warrant was issued against the petitioner herein returnable by 31.8.2007. On 18.8.2007, i.e., the very next day, the petitioner had surrendered before the Court and on a petition filed by him, non bailable warrant had been cancelled and the copies have been given to him and had been questioned.

    12. From the above said diary extract, it can be seen that the learned Magistrate has taken every effort to serve the notice on the petitioner and in fact on 1.8.2007, the learned Magistrate has directed the issue of notice to the Protection Officer. It further reveals that on the first date of hearing namely, 25.7.2007 itself private notice has been directed to be issued to the petitioner herein. Such order directing the issue of private notice to the petitioner herein cannot be said to be against the provisions contained in the Act but it can only be taken to be in consonance with Section 28 of the Act, since Section 28 of the Act enables the Magistrate to lay down his own procedure for disposal of the application. By the issue of private notice to the petitioner, it is not understandable as to how the petitioner is prejudiced. If the learned Magistrate had not directed the service of the notice through the Protection Officer, it is the respondent herein who should really be the aggrieved person by non-observance of the provisions contained in Section 12 and Section 13 (1) of the Act.

    13. The declaration of service of notice by the Protection Officer shall be the proof that such notice was served upon the respondent as per Section 13(2) of the Act. The absence of such declaration from the Protection Officer has not in any way affected the proceedings pending before the learned Magistrate or it has in any way prejudiced the interest of the petitioner herein. He had admittedly appeared before the learned Magistrate on 18.8.2007. Therefore, the necessity to file a declaration of service of notice by the Protection Officer has not arisen. Therefore, the contentions of the learned counsel for the petitioner is liable to be rejected and accordingly rejected.

    14. The proviso to Section 12 of the Act provides that before passing any order on the application filed under Section 12(1) of the Act, the Magistrate shall take into consideration any domestic incident report received by him from the Protection Officer. In this case, admittedly, the Protection order has not so far been passed and it is yet to be passed. The contention of the learned counsel for the petitioner is that the application itself should not have been taken cognizance in the absence of the domestic incident report from the Protection Officer. A reading of Section 12 of the Act does not warrant such an interpretation. Nowhere, it is provided in the Act that even for taking cognizance of the application filed by the aggrieved person, the receipt of the domestic incident report from the Protection Officer is a condition precedent. Therefore, the contention of the learned counsel for the petitioner is untenable and does not merit acceptance.

    15. As stated above, this Act being a beneficent piece of legislation enacted for providing minimum relief to an aggrieved person affected by domestic violence, even if there is any minor procedural deviation, such minor procedural deviation being technical in nature, need not be taken serious note off and on that ground, the proceedings pending under the Act cannot be quashed.

    17. In the considered view of this Court, the above petition is vexatious in nature and it amounts to clear abuse of process of the Court and hence, the same is liable to be dismissed and accordingly dismissed. Consequently, connected miscellaneous petitions are also dismissed.

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    Comments

    Amar Kumar Mahadevan v. Karthiyayini
    (Nov 28, 2007)